trademark law for breweries

A couple of weeks ago, two Oregon breweries ended at least their portion of a multibrewery dispute over the word “Apocalypse” and beer. We would say resolved, but that word seems to have a happy connotation. Happy, this was not. What was once “Apocalypse Brewing Company” in Medford, Oregon is now “Opposition Brewing Company” (and, yes, the new name was inspired by the passion-fueled litigation).

You’ll find here a frustrated blog post from the owner of the brewery-formerly-known-as Apocalypse, which is worth a read. And, there’s some good reporting on this matter over at beerpulse, so go check that out.

But, here’s what we wanted to point out. As of right now, there doesn’t appear to be a federal registration filed for the “Opposition Brewing Company” name. Huh?

Maybe Opposition felt pretty beaten down by the legal system, so much that they just don’t have the fight to deal with it. Or, maybe the USPTO has a temporary reporting lag, so their timely filed registration isn’t showing…then again, we filed stuff a couple of days ago, and it’s already up.

Here’s the rub. Absent Opposition’s filing, anyone in the United States (or out of it) could be completing their federal registration, this very moment, for rights to use “Opposition” on beer, wine, whiskey, fizzy soda, whatever. It doesn’t even matter if they picked Opposition just because they heard of this dispute and thought the name was cool. In fact, even if someone never registers but starts using the name, it’s still important. The bottom line? Every second that ticks by without a filing increases your risk of a future trademark dispute.

If you’re a brewery out there that’s been stung before, don’t forget about the beehive—register!

Before you even get to the USPTO – there are a number of things you can do to preserve your brand.

Many brewers think that their brand is an afterthought. Others believe it is the end-all-be-all to their success. Well, there is no doubt that a brewer’s brand is incredibly valuable. The logo, design, and copy on the packaging all require attention – early on.

So I am often asked by brewers to tell them when they need to go about protecting their name and logo. The answer: yesterday. The craft brewing industry has become swollen. There is a massive group of potential branding competitors and you do not want your brand to become confused with another. Therefore, you need to be proactive and take some steps to ensure that your brand stays yours, and yours only.

Even before you get to brewing commercially, you should focus in on a theme that represents what you make as a brewer. The theme will help you easily craft a name and logo that fit your motif. Once you hammer it down and work with an artist to put your vision on display – it’s time to be proactive and protect it.

Before you speak to an attorney, you could do the following:

Search TESS, the federal trademark registry. Look for other “beer” related brands that might be confusingly similar to your own name.

Search COLAS public, the federal label registry. Look for other labels and brands that are on the market with a similar name – heck even a specific beer with your brewery’s name would be potentially a threat.

Check for available Domain Names. Go to your favorite online domain provider (GoDaddy, 1&1, etc) and search for your name and similar variations (i.e., if you pick Little Bear – look for Small Bear, Tiny Bear, etc)

Check for social media availability. Go to Facebook and Twitter and make sure someone else is not using your handle for a branding purpose.

Once you have satisfied yourself that you have a brand — call your counsel and file your trademark. Under federal trademark laws, you have the ability to file on the basis of “intent to use,” meaning that you are not required to prove to the US Patent & Trademark Office that you are currently using the mark in interstate commerce. Instead, you get some time to get the brewhouse in place, fire up the kettles and begin making beer.

A federal trademark registration is the best way to inform the general public that you intend to use this brand. You can file a mark for either your name alone, your logo alone, or a combination of the two – so there is little reason to delay.

Be proactive and protect your brand early on. It’s simple, efficient and effective. Then, get back to brewing.

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